Column: A possible solution to Obamacare: President Harry Truman?

Wednesday

There are Supreme Court cases involving separation of powers and usually divided into three categories: Executive Encroachments, Congressional Encroachments, Executive Privilege and Immunity disputes.

Executive Encroachments are exemplified by Youngstown Sheet & Tube Co. v Sawyer (1952) which arose when President Harry Truman tried to take over control of the steel mills responding to labor unrest at the nation's steel mills, and the Dames and More v Regan (1981) case that considered the constitutionality of executive orders issued by President Jimmy Carter.

Examples of Congressional Encroachments include Bowsher v Synar (1986), involving the Balanced Budget Act that authorized Charles Bowsher, as Comptroller General of the U.S., to order the impoundment of funds appropriated for domestic or military use when he determined the federal budget was in a deficit situation, and the Morrison v Olson case which considered the constitutionality of the "Independent Counsel" (or "special prosecutor") provisions in the Ethics in Government Act.

Finally, there was the United States v Richard Nixon case which treated claimed abuses through Executive Privilege and Immunity. The core element in all these cases was the separation of powers. While there has been unbelievable and legitimate coverage of the Affordable Health Care Act (Obama Care), and how the recent objections voiced by those who actually lost affordable care and from those who will lose affordable care after the employer mandate kicks in, it seems to me that fixing it now cannot be done by the President though a rule change or executive order since that would fundamentally alter and thus make new law without the power to make law. The separations of powers as cited in the U.S. Constitution are:

Article I, Section. 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article II, Section. 1:

The executive Power shall be vested in a President of the United States of America.

Article III, Section. 1: The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

Historically, there have been a number of cases treating interpretations of Presidential authority, each with a different argument and nuisance. The fundamental question is what is the basis of the President’s authority? That authority must come from the Constitution, itself, or from an act of Congress. With respect to the Constitution, the President’s power seems best defined in his actual oath of office:

I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect anhd defend the Constitution of the United States.

To see that the laws are “faithfully” executed negates and refutes the idea that he is the lawmaker and, thus, his responsibility is not making or changing federal laws, but rather enforcing them. With respect to Obama Care, the President had direct involvement in its formation and its becoming law by virtue of his signature of approval. In fact, by putting his signature on the Bill and making it a law, he affirms his role as the faithful enforcer, not a selective enforcer, and not the maker of the law.

Thus, the president is restricted to suggesting to Congress components of any future laws prior to his signature to faithfully enforce them. Congress can then accept or reject his proposed input into any new healthcare law or changes to the existing one but only Congress can change it or create a new Bill which the President signs into law. The President cannot then pick and choose those specific portions of the law which he likes to be enforced, and alter those he doesn’t like. The Presidential power to do that occurred prior to his signature agreeing to the law.

Because Obamacareis flawed and could end up in court by those hurt by it, doesn’t give to the President the sole discretion to make his own interpretation, or change that law. That response doesn’t meet the criterion of “faithfully” executing all of the law as written. Changes to it can be made by only those who formulated it: the Congress. Only after it has been passed by Congress will it be sent to the President for approval and “faithful” enforcement.

Just as President Truman was not permitted to take over the operations or make the management decisions of steel mills, it seems that President Obama cannot mandate the operations or management decisions of insurance companies. A final thought: is it quality of leadership, or something else that links Obama to Carter, Nixon, and Truman? I don’t think it’s a coincidence!

Giermanski is a resident of Belmont.

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